THE ARIZONA ADULT COURT SYSTEM

What is the Pre-Arrest Investigation? What is the Nature of the Criminal Charge or Alleged Offense? What is an Indictment or Complaint? Who Makes the Decision to Charge? What is an Initial Appearance? What is Bond? What is a Preliminary Hearing? What is an Arraignment? What is Discovery? What is a Status Review or Pretrial Conference? What is a Jury Trial? What is Sentencing? What is the Right to Appeal?

Q. What is the Pre-Arrest Investigation?

This is your opportunity to fight your criminal case before it goes to court. Prior to making an arrest or filing charges, local law enforcement agencies often investigate people suspected of committing an offense. This is the best time for someone under investigation to hire an attorney to conduct an independent investigation to take control and defend the case.

The goals of conducting a pre-arrest investigation include: (1) preventing the filing of charges; (2) reducing the nature or number of charges; (3) assisting with self-surrender, avoiding arrest, and arranging release conditions; (4) diverting allegations into an informal disposition; and, (5) keeping clients advised of legal rights.

By bolstering the client’s credibility or attacking the credibility of the complaining witness, an experienced defense attorney is sometimes able to prevent the filing of charges. The most common ways of bolstering the client’s credibility are notifying the prosecutor of favorable evidence and/or polygraph results. In fact, our firm regularly uses polygraph results to (1) verify our client’s story; (2) verify a witness’ statement; (3) obtain favorable pleas and (4) establish lenient terms and conditions of probation. By providing favorable evidence or witness’ statements to the prosecution, it is possible to challenge or question the complainant’s side of the story, or his reputation for truthfulness, making it possible to prevent the filing of charges.

Remember, as Frederick W. Lewis once said, “The time to win a fight is before it starts.”.

Q. What is the Nature of the Criminal Charge or Alleged Offense?

The criminal charge/alleged offense is either a felony or a misdemeanor. A felony is a crime punishable by one-year or more in State Prison. Felony cases are commenced by indictment, or by filing a complaint in a lower court. Ariz. R. Crim. P. 2. Where the prosecutor files a complaint in a lower court, the defendant will be bound over to Superior Court, provided the judge, or a Grand Jury determines that probable cause exists that the defendant has committed the offense charged.

A misdemeanor is a crime punishable by up to six months in county jail. Misdemeanor cases, at the discretion of the prosecutor, may be commenced by filing a complaint in a Justice or Municipal Court or by indictment in Superior Court. Ariz. R. Crim. P. 2.

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Q. What is an Indictment or Complaint?

The indictment or complaint are the charging documents used by the prosecutor to commence criminal proceedings. The indictment is a written accusation presented by a grand jury to a court in which it is impaneled, charging a person with an offense. The complaint is a written statement of the essential facts constituting an offense, presented by the prosecutor to a magistrate, charging the accused with having committed a crime. Ariz. R. Crim. P. 2.3.

Q. Who Makes the Decision to Charge?

In Arizona’s Superior Courts, only the (1) County Attorney, or (2) Attorney General may file felony charges against an individual, if there is sufficient evidence to believe the suspect committed a crime. The police may make recommendations to the prosecutor on whether to file felony charges, but the police do not file charges. The United States Attorney makes charging decisions in Arizona’s Federal District Courts. The police are authorized to file misdemeanor charges in Arizona’s local Municipal and Justice Courts.

Q. What is an Initial Appearance?

Following arrest, the initial appearance is the defendant’s first court appearance, which typically must occur within 24 hours of arrest. Ariz. R. Crim. P. 4.1. During the initial appearance, the Court will (1) ascertain the defendant’s true name and address; (2) inform the defendant of the charges against him or her; (3) inform the defendant of his or her right to counsel and to remain silent; (4) determine whether probable cause exists for release from custody; (5) appoint counsel if the defendant is eligible; (6) consider the views of the victim and (7) set the defendant’s release conditions. Ariz. R. Crim. P. 4.2.

Q. What is Bond?

Bond or bail is a monetary amount for, or condition of, pretrial release from custody, normally set by a judge at the initial appearance. The purpose of bail is to ensure the defendant’s presence at subsequent proceedings. Pursuant to Ariz. R. Crim. P. 7.3, the Court will order the defendant to comply with release conditions, including, but not limited to the following: (1) Release on “Own Recognizance” (the defendant is released on his or her promise to appear); (2) Release to Pretrial Services (the Pretrial Services Office supervises and imposes the terms of release; (3) Release to a Third-Party (a third-party agrees to supervise the defendant on behalf of the court) and (4) Depositing an Appearance Bond with the court to ensure the defendant’s return. Ariz. R. Crim. P. 7.3.

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Q. What is a Preliminary Hearing?

The preliminary hearing is a proceeding held in felony cases to determine whether the State has sufficient evidence to establish probable cause to believe that a crime has been committed and the defendant committed it. When a defendant is charged with a felony, a preliminary hearing must be held within 10 days following the defendant’s initial appearance if the defendant is in custody, or within 20 days following the defendant’s initial appearance if the defendant is not in custody. Ariz. R. Crim. P. 5.1(a). However, where a grand jury returns an indictment against the defendant, no preliminary hearing will be held.

Q. What is an Arraignment?

The arraignment must ordinarily occur within 10 days after the filing of the indictment, information or complaint. Ariz. R. Crim. P. 14.1(a). During the arraignment, the Court will read the charge and require the defendant to enter a plea of not guilty, guilty or no contest. In misdemeanor cases, the defendant’s attorney can appear in lieu of the defendant. In felony cases, however, the defendant must personally appear in court. Ariz. R. Crim. P. 14.2.

Q. What is Discovery?

In Arizona, the defendant has the right to obtain any evidence necessary to preparing a defense. Ariz. R. Crim. P. 15.1. Discovery, therefore, is the process by which the State is required to disclose ALL potentially exculpatory evidence relevant to the accused’s defense, such as (1) police reports; (2) results of scientific analysis; (3) witness statements and (4) access to the State’s physical evidence for independent analysis by the Defense.

Q. What is a Status Review or Pretrial Conference?

At any time after the filing of the indictment or information the court may conduct a Status Review or Pretrial conference. Ariz. R. Crim. P. 16.5(a). The purposes of the Status Review or Pretrial conference may include: (1) to provide a means of Pretrial disposition; (2) to promote plea negotiations; (3) to provide an opportunity to comply with discovery rules; (4) to clear the court’s calendar of cases which may be disposed of without a trial; and (5) to enable the court to set a trial date in cases which cannot be fairly disposed of without trial. Ariz. R. Crim. P. 16.5(b).

“Plea negotiations” may include bargaining for (1) an alternative to the prosecution such as diversion; (2) a reduced charge or sentence; (3) a dismissal of some of the charges pending against the defendant or (4) a sentencing alternative, such as probation or home arrest. Ariz. R. Crim. P. 17.4.

Additionally, the defense frequently files motions at a pre-trial conference, such as (1) Motions to Suppress Evidence; (2) Motions to Dismiss the Prosecution; (3) Motions to Dismiss the Indictment; (4) Motions to Compel Discovery and (5) Motions to Continue.

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Q. What is a Jury Trial?

In all criminal trials, the Prosecution must prove the defendant’s guilt beyond a reasonable doubt. In fact, the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the offense charged. In re Winship, 397 U.S. 358 (1970).

The Arizona Supreme Court has held the Arizona Constitution entitles every DUI/DWI defendant to a jury trial. Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966). However, the DUI/DWI defendant’s right to a jury trial is limited in two respects. First, when both DUI and DWI are charged, the defendant is not entitled to separate trials. Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479 (1966). Second, the number of jurors impaneled will range between six and eight depending on whether the defendant is charged with misdemeanor or felony DWI.

All felony cases and some misdemeanor cases provide the defendant with the absolute right to a trial by jury. The number of jurors varies depending on the crime charged and the potential sentence it carries; but all verdicts must be unanimous. Typically, the defense attorney and the prosecutor adhere to the following trial sequence: (1) opening statements; (2) direct examination; (3) cross-examination and (4) closing arguments. After instructing the jury, the jury will retire, and in light of all the evidence, the jury will decide the defendant’s guilt or innocence. Ariz. R. Crim. P. 22.1 The State has the burden of proving its case “Beyond a Reasonable Doubt”.

Q. What is Sentencing?

Sentencing refers to a hearing where the judge imposes a penalty on the defendant following conviction or a guilty plea. Ariz. R. Crim. P. 26.1. In some instances, the Court may sentence the defendant convicted of a felony to a term of probation instead of prison. Ariz. R. Crim. P. 27.1. However, the Judge may order the defendant to serve some jail time as a term of his or her probation.

There are two types of probation: supervised probation and summary or unsupervised probation. Supervised probation requires a probation officer to supervise a convicted offender who remains or is released at large, while under suspension of sentence. Summary probation differs from supervised probation only insofar as summary probation is unsupervised.

Absent probation, the Court may sentence the defendant to a range of prison terms. In felony cases, the range includes: (1) supermitigated; (2) mitigated; (3) presumptive; (4) aggravated and (5) superaggravated. Although the sentencing range imposed is within the Judge’s discretion, both defense counsel and the prosecutor will argue that a particular sentence is appropriate depending on the facts of the case.

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Q. What is the Right to Appeal?

Section 24 of the Arizona Constitution guarantees the defendant in a criminal prosecution the right to appeal his or her conviction. This does not apply when a defendant pleads guilty; it is only available if there is a conviction after a trial. The purpose of an appeal is to ensure that the trial court did not make any legal errors throughout the trial process. Appeals may result in the reversal of a person’s trial court conviction. In the case of the appeal from a municipal court or justice court, the defendant must file a notice of appeal with the clerk of the trial court within 10 days after the entry of judgment and sentence. Ariz. R. Crim. P. 30.2. In the case of appeal from superior court, the defendant must file a notice of appeal with the clerk of the court within 20 days after the entry of judgment and sentence. Ariz. R. Crim. P. 31.3.

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The Gillespie Law Firm, P.C. is a leading Phoenix, Arizona DUI and criminal defense law firm dedicated to the aggressive representation of clients involving all aspects of vehicular crimes and criminal litigation. We handle cases in Federal, State, Municipal, Juvenile, and Appellate Courts throughout the greater Phoenix Metropolitan Area and all of Arizona.